Estate Planning Lawyer in Delhi | Wills, Trusts, Succession Planning | Bijlani & Co

Estate planning is the process of arranging how your assets will be managed and distributed after your death or incapacity. In India, estate planning intersects with personal laws (Hindu, Muslim, Christian, Parsi), the Indian Succession Act 1925, the Hindu Succession Act 1956, and the Trusts Act 1882. Without a will or trust, your assets are distributed according to intestate succession rules, which may not reflect your wishes.

How to make a will in Delhi: step-by-step

A valid will in Delhi (or anywhere in India) must meet the requirements of the Indian Succession Act, 1925. The process is simpler than most people think, but execution errors are the most common reason wills get contested in court.

Step 1 — Compile your asset list. List all immovable property (with registration numbers and locations), bank accounts, fixed deposits, share holdings, mutual funds, insurance policies, business interests, and digital assets. Be specific: a will that says “my shares” without specifying which ones is an invitation to dispute.

Step 2 — Decide on a primary and contingent plan. Name your primary beneficiaries and, where possible, a contingent plan for what happens if a named beneficiary predeceases you. This prevents the estate from becoming part of a intestate succession claim.

Step 3 — Draft the will. The will must be in writing, clearly signed, and attested by at least two witnesses who are not beneficiaries. It does not require registration to be valid, but registering it at the Sub-Registrar’s office creates a stronger evidentiary record and makes the will harder to contest.

Step 4 — Execute and store. Sign in the presence of both witnesses. Store the original in a safe place and give one copy to your executor. Inform your executor and a trusted family member where the original is.

Step 5 — Review and update. Wills are not permanent documents. Marriage, divorce, birth of children, acquisition of new property, or a change in your wishes should all trigger a review. A will executed 20 years ago may no longer reflect your intent.

Trusts and family business succession

For families with business interests, investment portfolios, or significant immovable property, a trust can provide structure that a will alone cannot. A private trust (governed by the Indian Trusts Act, 1882) allows you to transfer assets out of your personal estate, name trustees, and set out distribution rules that survive your lifetime. This is particularly useful where:

• You want to protect family wealth from a child’s creditor or a future divorce claim
• A business needs a continuity plan that isn’t tied to any one individual
• You hold assets in multiple family members’ names and want a single governance structure
• You want to minimise the probate process for a large estate

Delhi-based families also use public charitable trusts and family settlements (where joint family property is formally divided among coparceners by a registered deed). Each structure has different tax and legal consequences, and choosing the wrong one can create more problems than it solves.

Probate and succession in Delhi: what the courts actually do

Probate is the court’s certification that a will is genuine and that the executor is legally authorised to administer the estate. In Delhi, probate applications are heard by the Delhi High Court (for wills executed in Delhi) or the relevant district court in the jurisdiction where the property is located.

The practical reality: probate is not mandatory in India to transfer most assets, but banks, stockbrokers, and property registrars increasingly require a probate order or a succession certificate before releasing assets above certain thresholds. The Delhi High Court’s probate division typically takes 4–8 months for a straightforward uncontested will. Contested matters—where a will is challenged on grounds of undue influence, lack of capacity, or forged attestation—can take years.

If there is no will, the estate passes under the applicable personal law’s intestate succession rules. For Hindus, this is governed by the Hindu Succession Act 1956, where Class I legal heirs (spouse, children, mother, and in some cases father) have absolute rights. For those with significant assets and no will, the absence of a documented succession plan is the single most expensive estate planning mistake.

Estate planning for NRI families in Delhi

NRI families with property in India face a distinct set of complications. Foreign exchange regulations (FEMA) restrict how non-resident Indians and foreign citizens can hold, acquire, and transfer immovable property. An NRI who holds a property jointly with a resident spouse, for example, has different transfer rules than one who holds it alone.

Key issues NRI families should address in their Delhi estate plan:

• Power of Attorney validity — POAs executed abroad require apostille/attestation and are subject to stricter scrutiny by Indian courts
• FEMA repatriation limits — NRIs can repatriate capital gains and sale proceeds within prescribed limits; a poorly drafted estate plan can trap funds in India
• Inheritance by non-resident heirs — a non-resident Indian or foreign national can inherit immovable property, but repatriation of sale proceeds is subject to FEMA rules and tax deductibility
• Multi-jurisdiction wills — if assets are held in India and another country, two separate wills (or a carefully coordinated single will) are typically needed, each valid in its jurisdiction

Tax considerations in estate planning

India does not have a separate estate tax, but three tax provisions significantly affect how you should structure your estate:

Inheritance tax (abolished but relevant history). India’s estate tax was abolished in 1985, but the structure of your estate can still trigger income tax events. Transfers of property, securities, or business assets as part of a trust or family settlement may be treated as taxable events for the transferor.

Capital gains on transfer. Where property is transferred to a spouse or minor child, the capital gains tax deferral under Section 54 of the Income Tax Act may apply if reinvestment conditions are met. Transfers to non-family members are generally taxable.

Gift tax. Gifts between specified relatives (spouse, children, parents, siblings) are exempt from income tax. Gifts to anyone else above Rs. 50,000 in a financial year may be taxable in the hands of the recipient. Structuring inter-generational transfers as gifts to eligible relatives is a legitimate and commonly used estate planning tool.

A Delhi estate planning lawyer will map these provisions against your specific asset profile before finalising your structure. The goal is to minimise tax friction at transfer and at distribution without creating a document that is vulnerable to challenge.

Frequently asked questions about estate planning in Delhi

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